Pretrial diversion programs are effective. And expensive for participants.

One day in October 2021, Michael Morrison finished a 10-hour work shift in Trussville. He got in a car with a cousin to go back to Miles College in Fairfield, where he was a student.

His cousin made a stop at an apartment complex in Hoover. As Morrison remembers, his cousin returned with marijuana. They drove to a gas station to fill up the tank and returned to the road, but his cousin forgot to turn on the headlights. That drew the attention of a police cruiser.

“We didn’t get what was going on until afterwards,” Morrison said. “We thought, ‘Oh, that is why he was flashing and blinking his lights, because the lights were off.’”

When the police stopped them, they saw the drugs. A subsequent search found mushrooms.

Both Morrison and his cousin were taken into custody. The two remained in holding for 72 hours before Morrison paid bond and was released.

Morrison got an attorney and prepared to go to court. He had never been charged with a crime before. But now Morrison was staring at two charges, a felony and a misdemeanor, that could forever alter the course of his life.

Three months after his run-in with police, Natalie Campbell, who works in the Jefferson County District Attorney’s Office, asked Morrison if he wanted to be considered for something called the Reset Program, which she ran.

“And I was like, ‘OK, I can do that,’” Morrison said. “Of course, with that, I can get whatever happened taken off my record. I was like, ‘This is perfect. Yes, I would like to do the program.’”

Mounting costs of incarceration

Diversion allows those who commit certain offenses the chance to receive assistance and demonstrate a willingness to try rehabilitation to avoid jail time and have their criminal histories removed from their records.  Local governments have turned to diversion programs partly as a response to the spiraling costs of locking people up.

The Jefferson County Commission’s 2024 budget calls for $83 million for the local sheriff’s office, an increase of about 21% from fiscal year 2021. The office accounts for roughly 31% of the $269 million budget for Jefferson County and is the largest single expenditure in the budget.

Sonny Brasfield, the executive director of the Association of County Commissions of Alabama, said that kind of spending is not unusual. He estimates that outside the 12 to 15 largest counties in the state, jail operations account for more than 50% of most counties’ budgets.

“That is a systemic problem in county government, and it is a massively expensive issue,” he said.

Incarceration itself is costly. The Alabama Department of Corrections has requested almost $820 million from the General Fund budget for the coming fiscal year, a $158 million (24%) increase over the current year’s budget of $661.7 million. That’s over a fifth of the entire General Fund, and the second-biggest expenditure after Medicaid.

Construction for the men’s prison facility in Elmore County is estimated at more than $1 billion, matching the $1 billion contract that ADOC made with YesCare to provide comprehensive medical care services for individuals incarcerated in the state’s prisons.

Diversion programs can not only save money; they can prevent participants from returning to prison. One survey of five study diversion programs at three different sites in Illinois, Wisconsin and Vermont in April 2018 found that participants “benefited from a reduced likelihood of conviction and incarceration; and in four of the five programs, pretrial diversion participation led to reduced re-arrest rates.”

A meta-analysis done by Holly Wilson and Robert Hoge in 2013 that reviewed 73 diversion programs and found that the average recidivism rate for those who participated in a diversion program was 31.5% while those who were processed and placed in the traditional route had an average recidivism rate of about 41.3%.

Another study in 2018 cited a benefit between $10-$25 for every $1 invested in diversion. The benefits include reducing future crime; reducing costs to the criminal justice system and keeping people out of courts and jails.

“Some of the alternative sentencing programs have significantly helped,” Brasfield said. “Especially in the areas of the state with the resources to have drug courts, veterans courts, as well as work release programs, counties that have those, those certainly have helped lessen the devastating impact of the rising costs. Those programs are not all present, especially in the smaller counties.”

The Prison Policy Initiative describes diversion programs as exit ramps off a highway, with the system representing the different stages of involvement in the criminal justice system. One of the best ways to prevent crime is to ensure people have access to jobs and adequate housing.

Diversion can happen at the law enforcement stage with police summoning services to assist individuals in lieu of arresting them when they are dispatched to a scene. But the traditional model involves the courts, usually in cases where mental health or substance abuse issues are the underlying cause of the offense.

In these instances, individuals who plead guilty to an offense will go to a treatment program instead of a correctional facility, while submitting to accountability measures that can include court appearances or undergo drug testing.

“We have actually seen, over the years, as more data has been collected, that pretrial diversion, and even at times deflection from the system entirely, has worked,” said Miriam Krinsky, a former federal prosecutor and executive director at Fair and Just Prosecution, an organization that advocates for criminal justice reforms. “Often, when individuals are struggling with substance abuse issues or mental health challenges, or simply the manifestations of poverty, what they need is assistance and not a jail cell.”

Diversion programs also benefited the community.

“We can sometimes do more harm than good by putting people behind bars,” Krinsky said. “We can sometimes do more harm than good by bringing them into the criminal legal system.”

Incarceration can be disruptive and traumatizing for those in the system.

“Local jails have really appallingly poor success rates by any metric we know how to measure,” said Rebecca Blair, the director of strategic initiatives for Fair and Just Prosecution. “The recidivism rates are huge. They are incredibly destabilizing. They cause people to lose their jobs, to lose their homes. They can be really taxing on family ties, social ties, and a person’s sense of community.”

Difficulties getting in

But getting into diversion programs can be difficult, particularly for those with few resources. Some simply can’t afford the cost of paying to have their records cleared, while others may not have a car to get themselves to mandatory counseling or treatment and court appearances.

A 2020 Alabama Appleseed report that surveyed over 1,000 Alabamians who had been in the criminal justice system found that the median cost of enrolling in a diversion program was $1,600. Meeting that obligation was a struggle for many of the survey participants because most were on the lower end of the economic scale. Roughly 55% were earning less than $15,000 annually. About two-thirds of the participants made less than $20,000 per year.

“These programs are a fantastic opportunity for people to wipe the slate clean,” said Carla Crowder, executive director of Alabama Appleseed. “But in many counties, they are incredibly expensive. There are admission and administrative fees in the thousands of dollars. Also, they are really onerous to complete because you often have to be in court once a week, or you have to be in an office to do drug testing a couple of times a week. For people with families or full-time employment, it is almost impossible to jump through all the hoops required of these programs.”

According to Appleseed’s 2020 report, Baldwin County charged a $1,000 administrative fee and $350 application fee for that county’s diversion program. Fifty-four percent of those charged with the crime paid upfront to participate. Another 60% paid for each of their drug tests; about half paid for the supervision; 23% paid for the treatment costs and another 21% paid for evaluation.

A message was left with the Baldwin County District Attorney’s Office.

Ongoing costs to participate are significant. According to the report, Baldwin charged a monthly monitoring fee of $100 for 12 months, decreased to $25 per month after that first year for those who successfully follow the rules and make timely payments. Participants also pay $20 a week for a drug screen.

Taken together, according to the report, participants could spend over $3,000 for an 18-month program.

That does not include indirect expenses, including transportation. Timing is another issue, with most drug courts meeting during the mornings and afternoons. That can force participants to choose between missing work or family obligations or charges for failing to appear in court. Drug testing is random, and happens in a short turnaround, which can hamper people as well.

There are also racial disparities in the programs. A joint study published in July 2021 by Florida International University, Loyola University Chicago and Safety + Justice Challenge found that eligibility criteria for diversion programs in Jacksonville, Florida meant that 16% of Black felony defendants were eligible for diversion, versus 23% of white and 28% of Hispanic defendants.

Minorities are more likely to have criminal histories than white defendants. Multiple prior offenses generally disqualify people from participating in diversion programs and cut them off from substance abuse and mental health programs.

Rising price tags

In some cases, lawmakers have increased the costs of existing programs. During the 2023 legislative session, lawmakers passed HB 446, sponsored by Rep. Rhett Marques, R-Enterprise, that increased the fees to enroll in a diversion program for people charged with a felony from $850 to $2,000. The money goes to pay for operations at the discretion of the district attorney’s office for Pike and Coffee counties.

“I think it is important to note that the fees we raised from have been in place for years, and years, and years and years,” said James Tarbox, the district attorney for Pike and Coffee counties. “There had not been an increase when I came into office.”

Money from the increase in fees go to pay for the operations of the office, especially personnel.

“We are not 100% funded by the state,” Tarbox said. “The state Legislature gives an appropriation. That appropriation goes to the Office of Prosecution Services, and is split up to the 41 judicial circuits. I think my total take this year will be about $750,000 in state money. Well, my total office budget is $1.9 million.”

Tarbox said the increase had not affected the number of applications to the program. He also said he did not increase the price by as much as he could have, electing to increase the fees for diversion for several offenses by about $100.

Despite that, the costs are a burden on low-income individuals and families trying to clear their criminal records. According to the Appleseed report, about 63% were forced to request money or food assistance from a charity to cover their payments.

About 45% used a payday loan or title loan to pay for the cost of the diversion program, while another 85% borrowed money from a relative or friend to cover the cost. About 42% responded that they committed a crime to pay the diversion program fees.

The Reset Program

Jefferson County is trying a different approach. In March 2022, the local District Attorney’s Office launched the Reset Program. For no charge, people who had a run in with the law could spend one Saturday participating in a workshop.

The workshop is broken into several parts, which include writing exercises to reflect on the criminal justice system and how they got into trouble with the law. Participants also touch on their goals and what they want to accomplish after they are done with Reset.

Should they complete the program, participants have their criminal records wiped clean.

Jefferson County District Attorney Danny Carr said in a recent interview that the program emerged from two years of conversations with experts and researchers about the best way to approach diversion, particularly for people in minority communities or those living in poverty.

“We all have to recognize that sometimes, good people do dumb things,” Carr said. “And it shouldn’t define you forever.”

Reset is based on a program in New York City. That program serves people in trouble with the law for low level, nonviolent crimes such as shoplifting, trespassing and criminal mischief.

Law enforcement alert those arrested for low level offenses and prosecutors review the case. If they are eligible they are then guided to community programming instead of the court system.

They then complete two to four hours of programming and those who successfully complete the intervention do not have to interact with the criminal justice system and do not have a criminal record.

According to the website, almost 4,000 people have gone through the program, with 98% of participants completing it. Participants were less likely to be convicted of a new arrest one year from completing the program (2% versus 8%) and were less likely to be rearrested (14% versus 17%).

According to the DA’s Office, 46 people have completed the program since it launched. Another 16 are active and enrolled.

Of all the people who have participated in the program, 48 are Black, 6 are Hispanic, 6 are white and another two are not indicated. So far, 5 have been terminated from the program. Only one of the 46 people who completed the program has been rearrested.

The program is one of several attempts by the county to rethink criminal justice. The county offers drug court, mental health court and a veterans’ treatment court. The district attorney has launched programs to investigate unsolved homicides and lower truancy rates in schools.

People who have been incarcerated may also participate in a second chance job fair that the district attorney hosts to secure employment and decrease the likelihood of recidivism.

Carr turned to organizations like Alabama Appleseed to explore the problem.

“He was looking toward a restorative justice model, where people involved in low-level crimes could understand the harm they have done, show some accountability, but also not get entangled in system for a long time, because we can see how that can just cause setbacks and inability for people to move their life forward,” Crowder said.

Reset targets people in their teens and 20s, who are least likely to have the means to pay the thousands of dollars required in more conventional pretrial diversion programs.

Natalie Campbell, the Reset coordinator, scans arrests and charges from the DA’s database. She then filters the individuals to ensure they fall within the age range, 18-26 years old, and have low-level felonies, such as drug possession and forgeries. They cannot have a prior felony conviction. Campbell waits until they have secured an attorney and then pitches what Reset can provide.

“It depends if they owe restitution,” she said. “Those cases do take a little bit longer because we allow them six months to pay back that restitution off. But for participants who don’t owe any restitution, they’re usually done with Reset within a month and a half to two months.”

Once they are part of Reset, participants are no longer required to attend court, but they must enroll and complete a weekend workshop.

“My part in the process is to do the inner work and the cognitive work to build self-worth,” said Salaam Green, who leads the workshops. “To also build the connection with their community and build the ability to express themselves so that they know who they are and also know that they have the opportunity to be educated about what the system is or isn’t, and how they respond to the system.”

The workshop begins with participants engaging in several writing exercises to reflect on their experiences with the justice system.

“I hope they get heard,” Green said about that particular component. “A lot of the participants, this is their first or second time with the justice system, and maybe have some prior stereotypes of the system, or some prior incidents of people in their lives who have had situations.”

The participants also share their experiences and reflections with the group.

“It really felt like character building, and trying to bring us back to where we were before the incident happened,” Morrison said.

There were activities that compelled participants to work together on the goals they have for the justice system.

“The biggest thing that comes out of this is there is a trajectory for communities that there has been trauma or challenges that this population has seen that they don’t like about the justice system, or that they don’t trust about the justice system,” Green said.

Participants also discuss goals for their lives. The purpose is to encourage them to make better choices and to help ensure those choices align with the path they want to go on for the future. That establishes a plan they can bring to the district attorney’s office that can help support their efforts.

“Some of the basic goals they have is that they want a better life,” Green said. “They want opportunities for their career.”

Many spoke of their experiences in high school and how they did not have that chance, how they were not heard from their academic advisors or college advisors.

“They also spoke of goals for stopping some of the laws they think are unfair,” she said.

For Morrison, it was about reflecting on his life, going back in time, and realizing that his experiences dovetailed with others in the group. It made him more social, to help him adapt to social situations. It helped him understand other people.

“It really enhanced what I already had,” Morrison said.

Each participant took a different lesson from the workshop, but for Morrison, it involved taking measure of who he spent time with.

As this was Morrison’s first arrest, he likely would have been offered drug court. If a person fails out of drug court, the individual is stuck with a felony.  Another possible option may have been to plead to a lesser charge, and sometimes these offers come with conditions such as a period of unsupervised or supervised probation, court fees and fines, and further court appearances.

With Morrison completing the program, the district attorney opted not to prosecute the case. His arrest will be expunged and his record cleared.

“I didn’t have the right friend group,” he said. “I needed to change my friend group. And that helped me to understand, ‘some of the people that you are around, you probably shouldn’t be around.’ That helped me grow in the social aspect of it.”